Embed Size (px)
Citation preview
WS0101.3730241.1
Moldova
ASSESSMENT OF THE QUALITY OF THE PPP LEGISLATION AND OF THE EFFECTIVENESS OF ITS IMPLEMENTATION
2011
I- PPP Legislative Framework
Assessment (LFA)
Compliance of the PPP legal framework with PFI Guide
recommendations1 and Best Practice
Core Area Rating Assessment
1- PPP Legal Framework
Existence of specific PPP law or a comprehensive set of laws regulating
concessions and other forms of PPP and allowing a workable PPP legal
framework
13/15
2-Definitions and
Scope of the Law
Existence of a clear definition of the boundaries and scope of application
of the concession legal framework (e.g. definition of "PPP", sectors
concerned, competent authorities, eligible Private party) limiting the risk
of a challenge to the validity of PPP contracts, irrespective of whether
the act is specifically targeted at PPP
16/21
3-Selection of the Private
Party
Mandatory application of a fair and transparent tender selection process.
Limited exceptions allowing direct negotiations, competitive rules for
unsolicited proposals and the possibility to challenge illegal awards.
30/42
4-Project Agreement Flexibility with respect to the content of the provisions of the Project
agreements which should allow a proper allocation of risks without
unnecessary or unrealistic/not bankable/compulsory
requirements/interferences from the Contracting Authority (obligations,
tariff, termination, compensation).
19/27
5-Security and Support Issues Availability of reliable security instruments to contractually secure the
assets and cash-flow of the Private Party in favour of lenders, including
"step in" rights and the possibility of government financial support, or
guarantee of, the Contracting Authority’s proper fulfilment of its
obligations.
5/15
1 UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects, 2001 (hereinafter the "PFI Guide")
Checklist Moldova
2.
Checklist Moldova
WS0101.3730241.1
6-Settlement of Disputes and
Applicable Laws
Possibility to obtain proper remedy for breach under the applicable law
through international arbitration and enforcement of arbitral awards.
14/15
General LFA Rating
97/135 71,9/% High Compliance
II-Legal Indicators Survey
(LIS)
Effectiveness Assessment : How the PPP law works in practice
Core Area Rating Legal Indicator Survey
7- Policy Framework Existence of a policy framework for public private partnerships 5/24
8 Institutional Framework Existence of an institutional framework for public private partnerships 4/15
9- PPP Law Enforcement Award and implementation of PPP projects in compliance with the Law 6/12
General LIS Rating 15/51 32,7/% Low Effectiveness
OVERALL RATING 52,2% Medium Compliance/Effectiveness
Local Expert2: Turcan Cazac, b.a.a.
2 The Local Experts in charge of each country have been consulted for the elaboration of the responses to the Checklist in their capacity of well recognized established law
firm in the country but the Local Experts as well as EBRD are in no way responsible for the responses given to any question in this Checlist as the Consultant was free to
use any other sources of information for its final determination.
3.
Checklist Moldova
WS0101.3730241.1
RATING: Key for assessment of Each Question
Yes 3 points Yes, with reservations 2 points No, with Limited compliance / redeeming
features
1 point
No 0 point
N/A Not applicable 0 point/ Not included in total
Key for Assessment of Each Core Area and for Overall Assessment
> 90% Very High Compliance/Effectiveness
≥ 70%-89% High Compliance/ Effectiveness
50%-69% Medium Compliance/ Effectiveness
30%-49% Low Compliance/ Effectiveness
< 30% Very low Compliance/ Effectiveness
TERMINOLOGY
So as to keep answers consistent and avoid ambiguity, we set out below some brief definitions of the terminology used in this questionnaire. Any
definition is provided solely to clarify some of the terminology used below. The reader should note that any such definition does not correspond
with any given definition under best international practice (which does not provide for any standardised PPP legal definitions recognised
worldwide) neither should it be interpreted that we recommend the adoption of such definitions under actual documentation, but they are
included in the interests of clarity for the completion of this questionnaire, and we should be grateful if you could adopt such definitions for the
purposes of completing the questionnaire.
4.
Checklist Moldova
WS0101.3730241.1
"Public Private Partnership" -"PPP" or "PPP project" includes all types of long-term arrangements between public authorities
and private institutions , including but not limited to; Concessions , BOT and derived forms, PFI and Institutional PPP. For the
purposes of this questionnaire, PPP excludes the sale of public assets or of public company shares which are part of a privatisation
process and also excludes public works, services or supply contracts which are subject to public procurement rules.
The following types of Public - Private Partnership Agreements may be adopted by a Contracting Authority for undertaking infrastructure
projects. These are solely indicative in nature and the Contracting Authority may seek to adopt a combination of the different contractual
arrangements, which incorporate some of their elements or combine elements.
"BOT" - (Build-Operate-and-Transfer)- and derived forms : a contractual arrangement whereby the Private Party undertakes to
finance, design, construct under a turnkey risk basis, operate and maintain an Infrastructure project for a specified period after
which period the project facilities are transferred to the Granting Authority usually without payment of any compensation.
The Private Party has the right to collect contract or market based tariffs or fees from the users of the infrastructure project, as
specified in the PPP agreement, to recover its investment and operating and maintenance expenses for the project. A BOT type of
PPP arrangement may provide for all the implementation and operational efficiencies of the private sector, together with new
sources of infrastructure capital. Derived forms of BOT contractual arrangements exist such as Build-Own-Operate-and-Transfer
(BOOT) similar to the BOT agreement, except that the Private Party owns the Infrastructure project during the specified term before
its transfer to the Contracting Authority or its designee, or such as Build-Own-and-Operate (BOO) which is a contractual
arrangement similar to the BOT agreement, except that the Private Party owns the Infrastructure project and no transfer of the
project to the Contracting Authority or its designee at the end of the fixed period is envisaged. Derived forms incorporating Lease
right rather than Ownership or dealing with rehabilitation or extension rather than construction which extent the possible
combination which for the purpose of this questionnaire will all be hereafter refferred to as BOT for simplification purpose exept
where legal specificcity requires specific treatment.
"Concession": is an act attributable to the State whereby a Contracting Authority entrusts to a third party the total or partial
management of public services for which that authority would normally be responsible and for which the third party assumes all or
part of the risk.
"PFI" (Private Finance Initiative) : a form of cooperation and partnership between public authorities and Private Parties which aim
to ensure the funding, construction, renovation, management or maintenance of an infrastructure or the provision of service to the
infrastructure without the delegation of the public service itself. It is a contractual arrangement whereby the Private Party
5.
Checklist Moldova
WS0101.3730241.1
undertakes the financing and the construction of an infrastructure project and after its completion transfer it to the Contracting
Authority or its designee. This arrangement may be employed in the construction of a public service facility for which the public
service must be operated directly by the contracting authority for whatever reason but the operation and maintenance of the facility
remain the responsibility of the Private Party for the entire duration of the PPP agreement. The contracting authority will reimburse
the total project investment on the basis of a rent based of an agreed schedule with the payment starting from the date of
commencement of operation and pay for the services rendered to the facility on a performance basis.
"IPPP"(Institutional PPP): a structural or corporate form of PPP which provide for the cooperation between public authorities and
a Private Party through a joint venture or mix (publid- private shareholding) company in which case all reference to the slection
process refers to the selection of the Private Party.
Other definitions:
The "Law" or "PPP Law": a law regulating any form of PPP including but not limited to Concession, BOT, PFI, IPPP and
including, for the purpose of this questionnair, the set of rules applicable to any PPP in the absence of a specific PPP law. The Law
for the purpose of this questionnaire also includes any implementing regulation and any form of governemental act regulating PPP.
"BOT Law" : a law regulating a BOT type of PPP in their multiple forms.
"Concession Law": a law regulating a Concession form of PPP.
"Contracting Authority": a public authority empowered to award a PPP and enter into Project Agreements
"PFI Law": a law regulating a PFI form of PPP.
"PPP unit" : specialized institution/agency/ministerial department established to promote and take care of PPP.
"Private Party" : Private Party or other entity in the form of a special purpose company to which a Project Agreement in general
has been awarded. [The word Private party will be used for the sake of this study even in case the PPP regulation allows PPP
business partner to be a mix company or even a public entity.]
"Project Agreement": an agreement(s) between the Contracting Authority and the Private Party regulating their respective rights
and obligations with respect to the PPP project.
6.
Checklist Moldova
WS0101.3730241.1
REFERENCE TO BEST PRACTICE
•UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects, 2001 (hereinafter the "PFI Guide") and UNCITRAL
Model Legislative Provisions on Privately Financed Infrastructure Projects, 2003 (UNCITRAL Model Legislative Provisions).
•EC - Commission Interpretative Communication on Concessions Under Community Law dated 12 April 2000; together with additional
EU major documents/decision /recommendation on concessions including Directives 2004/18/EC and 2004/17 EC of 31 March 2004;
Green Paper on Public Private Partnerships and Community Law on Public Contracts and Concessions dated 30 April 2004; Report on
the public consultation on the Green Paper (SEC(2005) 629- Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions on Public-Private Partnerships and
Community Law on Public Procurement and Concessions (Brussels, 15.11.2005.COM(2005) 569) European Parliament resolution on
public-private partnerships and Community law on public procurement and concessions (2006/2043(INI)); European Commission
Guidelines for Successful Public-Private Partnerships (2003).Commission Interpretative Communication Brussels, 05.02.2008
C (2007)6661on the application of Community law on Public Procurement, and Concessions to Institutionalised Public-Private
Partnerships (IPPP);
•EBRD Core Principles for a Modern Concessions Law – selection and justification of principles Prepared by the EBRD Legal
Transition Team.2005;
•UNIDO Guidelines for Infrastructure Development through Build Operate Transfer (BOT) Projects, 1996 (UNIDO BOT Guidelines);
and
•OECD Basic Elements of a Law on Concession Agreements, 1999-2000.
7.
Checklist Moldova
WS0101.3730241.1
OVERALL ASSESSMENT 2011 Moldova
In 2008 Moldova has passed its first PPP targeted Law, and in 2011 the first PPP projects are starting to be awarded, in sectors like
healthcare or infrastructure.
There is a clear policy shift in the Moldovan Government to depart from traditional concessions and focus on the improvement of
various public projects or public services via PPPs. Concession is seen merely as a form of PPPs. The PPP Law is preferred over the
concessions law because it has a liberal approach and gives effect to the principle of freedom of contract. A PPP division with the
Public Property Agency was set up under the law to overview PPPs and register awarded PPP contracts.
The incentives to PPPs include a set of amendments to legislation under which certain public assets/services could only be transferred in
use to private entities solely under PPPs.
The PPP Law is a short framework law which gives full control to the concerned public authority in conducting the tender process,
negotiating the PPP contract and monitoring its implementation. The Government or local council, depending on type of public
asset/service, just need to approve a summary of the PPP project in principle.
The law clearly allows the public authorities to develop any type of projects; not necessarily in those forms specified by the law.
Indeed, some early projects have not fully matched any form of PPP described by the law, but the law allows them.
One of the challenges at this point is the adoption and implementation of secondary legislation by the Government and various forms
for procedures (tenders, template documents). A practical challenge met by international bidders is the short duration of the tender
process: the law allows for a fixed, inflexible 60 calendar days' period between publication of the request for proposals to designation of
the winning bidder. An additional 30 days' period is granted for contract negotiation with the winning bidder.
Another sensible issue, to which the PPP law gives no clear solution, is the amount of compensation which the public authority should
pay to the private partner in case of early termination of the PPP contract (for either party's fault; or for external reasons, like change of
laws or force majeure).
8.
Checklist Moldova
WS0101.3730241.1
Arbitration clauses are allowed in the PPP contract but so far public authorities had resisted them mainly for two reasons: (1) high
perceived cost of international arbitration; (2) the fact that an arbitral procedure would not give immediate relief to public authorities,
e.g. they will not have immediate access to the local law mechanism of application of interim measures (such as "step-in rights") in
order to avoid the disruption of a core public service. However and this is a very positive sign sent to the International Business
community Moldova has ratified in June 2011 the ICSID Convention on investment dispute..
9.
Checklist Moldova
WS0101.3730241.1
ASSESSMENT & LEGAL INDICATOR SURVEY
1. LEGAL FRAMEWORK
1.1 Existence of different forms of PPP legal framework
QUESTION
ANSWER
ARTICLE
COMMENTARY
1. Does the country have a single act dealing
specifically with Concessions or a generalised
act incorporating the legal framework for PPP,
including Concessions ?
Article 18
of the PPP
Law and the
Concession
Law
The country has a generalised act incorporating the
legal framework for PPP, including Concessions as a
form of implementation of a PPP and also a single act
dealing specifically with Concessions, together with
other acts regulating concessions.
The PPP Law No. 179 dated 10 July 2008 includes
concession agreements as a form of realization of PPP.
Specifically, Article 18 (5) of the PPP Law stipulates
that the implementation of PPP through a concession
agreement is regulated pursuant to the legislation on
concessions.
Provisions regarding concessions are contained by:
10.
Checklist Moldova
WS0101.3730241.1
1. the Concessions Law No. 534 dated 13 July 1995;
2. the Law on administration and privatisation of public
property No. 121 dated 4 May 2007;
3. the Law on local public administration No. 436 dated
28 December 2006; and
4. the Governmental Resolution No.102 dated 27
February 1996 on the implementation of the
Concession Law.
2. Does the country have an act that allows BOT
or derived forms such as BOOT, BOO or other
forms either as part of a specific act or as part of
a general PPP Law?
Article 19
of the PPP
Law.
The PPP Law expressly provides for BOT and other
derived forms.
Although BOO is not expressly allowed, the PPP Law
provides for any other forms that are not prohibited by
law.
3. Does the country have an act that allows PFI,
either as part of a specific act or as part of a
general PPP Law?
Legislation does not prohibit specifically for PFI. Thus
it could be implemented in compliance with general
provisions of legislation. PPP Law allows any form of
PPP non-prohibited by law.
4. If the answer is No to any of the three first
questions concerning a specific form of PPP
does the Constitution or other general act (ex:
the Civil Code, sectoral law) recognise the basic
principles of the concerned PPP and regulate its
granting?
N/A
Article 19
(2) of PPP
law.
Article 18 (7) PPP law stipulates that contractual forms
of PPP could be implemented by any agreement
allowed by law.
Article 18 (8) PPP law stipulates that provisions of
Civil Code are applicable for any PPP agreement.
For our general information: Is a new PPP Law or an amendment to the existing Law being prepared, or considered, in the country?
If so, at what stage of the legislative process is such new PPP Law or amendment to the existing Law? Answer: To our knowledge, there are
presently no amendment proposals to the PPP law and no adoption of a new PPP law is planned in near future.
11.
Checklist Moldova
WS0101.3730241.1
1.2 Specificity and integration of PPP the legal framework
5. If the country has a Public Procurement Law, is
it clear to what extent does the Public
Procurement Law apply or not to the granting of
a PPP?
Article 2 (5)
of Public
Procurement
Law No.96-
XVI dated
13 April
2007
Moldova has a Public Procurement Law that stipulates
that the law applies to any form of PPP non-prohibited
by law.
Only a general clause explains the play between the
Public Procurement Law and the PPP Law. The clause
says that the Public Procurement Law will be applied
where the PPP involves procurement via public money.
We believe this to be too generalist and should at least
explain how the PPP tender procedure and the public
procurement tender procedure should be combined.
6. If the country has sectoral laws regulating PPP
in specific sectors, is it clear which law is
applicable to the granting of PPP for each
particular sector?
N/A
Moldova does not have sectoral laws regulating PPP in
specific sectors. However, various laws allow for the
operation of a PPP in the respective sector.
7. Does the country have a Law allowing the
Institutional form of PPP (IPPP) which
regulates IPPP participation to PPP?
Article 18
(1) (e) and
(6) of the
PPP Law.
The general PPP Law allows the IPPP through the
creation of a separate undertaking or through the
conclusion of an Undeclared Partnership. There is no
special IPPP law. Appointment of the private partner
will be carried out by contest
The IPPP can be performed by the Contracting
12.
Checklist Moldova
WS0101.3730241.1
Authority and the Private Party concluding an
Undeclared Partnership (without creating a legal entity)
or by creating an LLC or a Joint Stock company. The
PPP Law also allows an IPPP to initiate through selling
by the Contracting Authority of its share in an
undertaking to a Private Party.
13.
Checklist Moldova
WS0101.3730241.1
2. DEFINITIONS AND SCOPE OF THE PPP LAW(S)
2.1 PPP definition 3
QUESTION
ANSWER
ARTICLE
COMMENTARY
1. Does the Law define one or several term(s) (i.e.
"PPP", "Concession", "BOT", "Partnership"
etc. and/or respective agreements) for the
arrangements to be regulated by the Law which
specify the limits of application of the Law?
For our general information,: please provide the
given definition(s), if any.
Article 2 of PPP Law,
article 1 of Concession
Law.
1. PPP – long term agreement, concluded
between the public partner and the private
partmner for the performance of public
interest activities, that is founded on the
basis of the capacities of each partner to
distribuite correspondingly the resources,
the risks and the benefits.
2. Concession – an agreement by which
the state or its administrative units assigns
(transmits) to an investor (natural person
or legal entity, including a foreign one), in
exchange for a royalty, the right to
3 PFI Guide, Consolidated Legislative Recommendations, Recommendation 3and Commission Interpretative Communication on Concessions Under Community Law dated
12 April 2000; together with additional EU major documents/decision /recommendation on concessions including Directives 2004/18/EC and 2004/17 EC of 31 March
2004; Green Paper on Public Private Partnerships and Community Law on Public Contracts and Concessions dated 30 April 2004; Report on the public consultation on the
Green Paper (SEC(2005) 629- Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions on Public-Private Partnerships and Community Law on Public Procurement and Concessions (Brussels, 15.11.2005. COM(2005) 569)
European Parliament resolution on public-private partnerships and Community law on public procurement and concessions (2006/2043(INI))
14.
Checklist Moldova
WS0101.3730241.1
perform the activity of prospection,
exploration, capitalization or restoration of
the natural resources on the territory of the
Republic of Moldova, to provide public
services, to operate the movable and
immovable assets that constitute public
ownership of the state or of its
administrative units that are, pursuant to
the law, excepted, partially or in full, from
the civil circuit, as well as the right to
perform certain types of activitites,
including the activities that constitute state
monopoly, by taking over the operation of
the concession subject, the presumptive
risk and the liability.
3. BOT – construction, operation,
transfer, through which the private partner
takes over the contruction, the financing,
the use and the maintenance of a public
asset. The investor is allowed to impose
usage fees in order to recoup his
investment and to cover its maintenance
expenses, and also in order to obtain a
reasonable profit. At the end of the
agreement, the public asset is transferred
gratuitously to the public authority in
good shape and free of any liens or
obligations.
2. Does the Law apply to all contracts entered into
Article 1 and Article 18
The PPP Law applies to all contracts
15.
Checklist Moldova
WS0101.3730241.1
that fall under the definition(s) given above,
irrespective of the name given to such contract
(concession, license, usufruct right, lease, etc.)?
(7) of the PPP Law. entered into that fall under the definitions
given above, irrespective of the name
given to such contract. Also article 725 (2)
of the Moldovan Civil Code stipulates that
the agreement should be interpreted
according to the intention of the parties,
irrespective of the terms used in the
agreement (and therefore, irrespective of
the name of the agreement).
3. Does the Law make a clear distinction between
a PPP agreement (such as a Concession) and a
license (i.e. an authorisation to operate by a
public authority)?
The PPP Law itself does not make this
distinction. However, there is a separate
law for licensing. Law on licensing of the
enterprising activity No.451 dated 30July
2001.
2.2 Contracting Authority
QUESTION
ANSWER
ARTICLE
COMMENTARY
4. Does the Law identify (or allow clear
identification by reference to other laws or
regulations) the public authorities ("Contracting
Authorities") that are empowered to select
projects, prepare for, and award PPPs and enter
into Project Agreements ?
Article 2 of
the PPP
Law
The PPP Law provides that all public legal
entities or their associations may be subjects of the PPP
Law. As such, the PPP Law does not identify any
Contracting Authorities expressly, and does not make
reference to other laws/ regulations that allow clear
identification but public partner – any legal person
under the public right (authorities) or an association of
such persons which are able to establish a public private
16.
Checklist Moldova
WS0101.3730241.1
partnership rapport subject to the required
authorizations ;
For our general information: If yes, which of the following authorities are identified:
National authorities (e.g.: the government, ministries, and independent agencies);
Regional/state-level authorities;
Local or municipal authorities; or State owned companies?
2.3 Private Party and Project Company
QUESTION
ANSWER
ARTICLE
COMMENTARY
5. Is it possible for a PPP be awarded to a foreign
company, a Private Party or to a domestic
company with foreign participation in the share
capital and/or management (without
discrimination)?
Articles 1-
10 PPP
Law.
PPP Law stipulates that Private Party can be any legal
entity or natural person or any of their associations. The
Law establishes that Contracting Authority will not
discriminate and assure equal treatment for each private
bidder.
For our general information: can a PPP be awarded to public entities or to entities jointly owned by private and public entities (IPPP)?
Are there restrictions imposed on such contracts?
Answer: A PPP cannot be awarded to public entities, as the PPP Law allows only for private entities and/ or natural persons, as well a for
their associations to be private partners in a PPP. As to IPPP, as detailed in p. 1.2/7 above, they are allowed under the PPP Law.
17.
Checklist Moldova
WS0101.3730241.1
2.4 Concerned sectors4
QUESTION
ANSWER
ARTICLE
COMMENTARY
6. Does the Law identify (or allow identification
by reference to other laws or regulations) the
sectors and/or types of infrastructure and/or
services in respect of which a PPP may or may
not be granted?
Preamble
andArticle
17 of the
Law.
The PPP Law does not make such identification.
However, it provides that PPP can be awarded in
respect to any asset, work, public service or function of
the Contracting Authority. Moreover, infrastructure
elements and/or public utilities can also form the object
of a PPP.
7. Do the list of sectors eligible for PPP
correspond to an open-ended one (as opposed to
being exhaustive) allowing (or at least not
preventing) PPP to be granted in numerous
sectors”?
N/A
Preamble
and Article
17 of the
Law.
The PPP Law does not provide for any list of eligible
sectors. PPP can be granted in numerous sectors.
8. Do the sectors eligible for PPP includes non
commercial activities such as the provision of
government services (such as schools, hospitals,
prisons, defence and housing) in addition to the
merchant sectors of the economy (energy,
transport, water, oil and gas).
Article 17
of the PPP
Law
The PPP Law provides that PPP can be awarded in
respect to any work, public service or function of the
Contracting Authority. As such, non-commercial
activities are included in PPP.
4 For further information on the concerned sectors please refer to:PFI Guide, Consolidated Legislative Recommendations, Recommendation 3 and 4.
18.
Checklist Moldova
WS0101.3730241.1
For our general information: Please indicate the restrictions if any imposed by the Law on the sectors eligible for PPP:
Answer: the PPP Law does not expressly provide for any restriction on sectors eligible for PPP. The wording of the Law allows for any asset,
work, or public service
19.
Checklist Moldova
WS0101.3730241.1
3. SELECTION OF THE PRIVATE PARTY5
3.1 General Considerations
QUESTION
ANSWER
ARTICLE
COMMENTARY
1. Does the Law require, in principle, the
Contracting Authority to select Private Parties
through a competitive tender process?
Articles 25-
32 of the
PPP Law
Tender process of selecting of Private Parties
2. Is there reference in the Law to the principles of
transparency, equal treatment and
proportionality?
Articles 3-6
of the Law
The Law also provides the principles of the balance,
effective competition, freedom to enter into contracts,
and cooperation. Article 3 and Articles 7-10 of the
Law.
3. Is there a provision in the Law concerning the
publication of information related to the
competitive procedures in the country media
and in the international media (for large
projects)?
Article 25
“f” of the
Law
The PPP Law provides for the publication of a
Communique regarding the public bid and the
selection of a private partner in Monitorul Oficial al
Republicii Moldova (the Official Journal of Republic
of Moldova).
Article 20 (1) of the Public Procurement Law provides
5 For further information on the selection of the Private Party, please refer to:PFI Guide, Consolidated Legislative Recommendations, Recommendations 14 to 39 included.
20.
Checklist Moldova
WS0101.3730241.1
that the Contracting Authority is obliged to publish the
invitation to present the offers in the Public
Procurement Newsletter, as well as on the web page of
the Public Procurement Agency.
Moreover, for certain public procurements the
publication of the said invitation must be published
also in the Official Journal of the European
Community.
The Law does not contain other provisions concerning
the publication of the information in other country
media or in international media.
4. Are there provisions within the Law or any
special manual or recommendations governing
in detail the selection of the Private Party (i.e.:
the pre-selection of bidders, the procedure for
requesting proposals or other procedure such
as competitive dialogue/two stage procedure)?
XX
Article 27
to 30 of the
PPP Law
The Private Party shall be selected by a Commission
appointed by the Contracting Authority and basic
tender rules are included in the PPP Law but no
detailed rules. One of the challenges at this point is the
adoption and implementation of secondary legislation
by the Government and various forms for procedures
(tenders, template documents)
5. Does the Law provide that if the Contracting
Authority rejects an applicant at the time of
pre-selection or disqualifies a bidder, it must
make public the reasons for the decision (or
inform the rejected bidder thereof explaining
the reasons for rejection)?
XX
Article 29
of the PPP
Law
The PPP Law provides that the Contracting Authority
must prepare an assessment report on the offers of the
bidders and decides on the winner of the competition
or rejection of all the offers. The results of the
competition must be published in Official Journal of
Moldova.
The participants can contest the results of the
competition within the period of 15 days from the
21.
Checklist Moldova
WS0101.3730241.1
publication.
As such, only the results of the bid must be made
public, while the reasons for the disqualification of a
bidder are not made public.
3.2 Award of PPP
QUESTION
ANSWER
ARTICLE
COMMENTARY
6. Does the Law provide that all proposals are
ranked solely on the basis of a predefined
evaluation criteria set forth in the pre-
selection documents/ request for proposals?
Article 29
(2),(3)
Each proposal is ranked according to the criteria
established by the PPP Law, in line with the
published information.
The Commission assesses the proposals according to
following criteria: quality, price, aesthetic and
functional characteristic, environmental
characteristic, functional expenses,
advantageousness, post-selling services and technical
assistance, period and date of delivery or execution.
7. Does the Law provide for the publication of a
notice of the award of the project, identifying
the Private Party and including a summary of
the essential terms of the project agreement?
Article 29
(6) of the
Law
The PPP Law provides that the selecting Commission
shall publish its decicion concerning the PPP award
in Monitorul Oficial al Republicii Moldova (the
Official Journal of Republic of Moldova).
22.
Checklist Moldova
WS0101.3730241.1
The Law does not provide the publication of the
summary of the essential terms of the agreement.
8. Does the Law provide that the Contracting
Authority or any other public authority
maintain records of key information
pertaining to the selection and award
proceedings?
Article 29
(5) of the
Law
Art 32 (1)
of the Law
The PPP Law provides that documents of the bidders
that were not awarded are kept in the archive of the
Contracting Authority for a period of 3 years, after
which they are destroyed.
For the purpose of ensuring the record of the public
property goods, works and services on the basis of
which public-private partnerships were concluded,
the copies of the contracts signed with the private
partners are sent to the Agency so as to be recorded in
the Register for public property, in the order
established by the Government.
9. If the answer to the previous question is Yes,
does the Law provide that such record is
accessible to the public, or at least to
interested parties?
XX
The Law does not expressly provide that the records
are accessible to the public or to the interested
parties.
3.3 Final negotiations
QUESTION
ANSWER
ARTICLE
COMMENTARY
10. Does the Law contain provisions regulating
Article 30
The Law provide that after awarding the PPP, the
23.
Checklist Moldova
WS0101.3730241.1
final negotiations (i.e. post contract award) so
that transparency, equal treatment and
competition are preserved?
(1) and
(2)of the
Law
Contracting Authority shall prepare within 30 days
from the award, a draft agreement, pursuant to the PPP
law, that is transmitted to the winning bidder. After
receipt the draft agreement by the winning bidder, the
parties negotiate during the period of 30 days.
The Law does not provide the possibility to extend the
period, but such possibility is not prohibited if parties
agree.
However, no other express provisions regarding final
negotiations exist.
11. Does the Law provide that the Contracting
Authority has the authority to terminate
negotiations with the invited bidder if it
becomes apparent that the bid will not result in
an agreement and start negotiations with the
second ranked candidate?
Article 30
(3) of the
Law
The PPP Law provides that in case the winning bidder
does refuses to execute the agreement after the
expiration of 30 days for negotiations, the Commission
is entitled to award the PPP to the second ranked
candidate.
3.4 PPP Award without competitive procedure
QUESTION
ANSWER
ARTICLE
COMMENTARY
12. Does the Law provide that the Contracting
Authority has the authority to award a PPP
without a competitive process only in limited/
exceptional circumstances?
The law does not provide for any exeptionto the tender
process
24.
Checklist Moldova
WS0101.3730241.1
13. Does the Law provide for a procedure, set of
rules or principles to be respected when
awarding a PPP without a competitive process?
N/A
For our general information, please specify the conditions which would allow such direct negotiations?
25.
Checklist Moldova
WS0101.3730241.1
3.5 Special case of unsolicited proposals
QUESTION
ANSWER
ARTICLE
COMMENTARY
14. Does the Law provide for an adequate
framework for the Contracting Authority to
manage unsolicited proposals/private initiatives
(i.e. a proposal relating to the implementation of
a PPP that is not submitted in response to a
request or solicitation by the Contracting
Authority) that ensures transparency and equal
treatment and does not distort competition?
XXX.
3.6 Review procedures
QUESTION
ANSWER
ARTICLE
COMMENTARY
15. Does the Law allow the bidders who claim to
have suffered, or that may suffer loss or injury,
to seek review of the Contracting Authority’s
actions or failure to act?
Art 29 (6)
-(7)
The participants at the tender whose bids have been
rejected, are entitled to contest the commission’s
decision within 15 days from the publication in the
Monitorul Oficial of the Republic of Moldova of the
information regarding the selection of the private
partner.
The bidders who claim to have suffered or that may
suffer loss or injury can seek damages in court, pursuant
26.
Checklist Moldova
WS0101.3730241.1
to the Moldovan Civil Law.
27.
Checklist Moldova
WS0101.3730241.1
4. PROJECT AGREEMENT6
h
4.1 Model or list of provisions
QUESTION
ANSWER
ARTICLE
COMMENTARY
1. Does the Law give flexibility to the negotiation
of most terms of the Project agreement and if it
contain (or refer to): (i) a model PPP agreement
it is an optional template agreement for
guidance only or (ii) a list of mandatory
material provisions which must be included in
the agreement, the content of such provisions is
left for negotiation)?
The Law does not expressly provide a model of PPP
agreement. Also it does not provide a list of mandatory
material provisions which must be included in the
agreement.
Mandatory provisions of a PPP agreement results from
the provisions of the PPP Law, such as parties, object
of the agreement, period of PPP, etc.
The content of such provisions is opened for
negotiation. Even so, they should be in compliance with
information published in Official Journal of Moldova
and the offer provided by the bidder, otherwise the
agreement risks non compliance with the PPP Law.
We are aware that the Ministry of Economy is
developing a draft Government Decision whereby
several template of PPP agreements will be adopted. It
6 For further information on the project agreement definition, please refer to:PFI Guide, Consolidated Legislative Recommendations, Recommendations 12 and 40 to 68
included.
28.
Checklist Moldova
WS0101.3730241.1
is suggested that their observance will be mandatory by
Contracting Authorities.
4.2 Duration and extension of the Project Agreement
QUESTION
ANSWER
ARTICLE
COMMENTARY
2. Does the Law provide that the duration of the
Project Agreement should depend on the length
of time taken for the amortisation of the Private
Party's investment and an appropriate return on
the capital?
XX
Only some limitation of duration to 50 years for some
forms of PPP
3. Does the Law provide that the renewal or
extension of the Project Agreement should be
limited and depend on exceptional
circumstances (such as Contracting Authority
default or an event of force majeure)?
Article 31
(1) of the
Law
The Law provides that if as the result of adoption of
legislative or other normative acts that worsen the
situation of the Private Partner in the way it lead to the
lack of the possibility to obtain what was entitled to
obtain, the parties could modify the conditions of the
agreement in order to ensure the economic interest of
the Private Party existing at the moment of concluding
the agreement.
Other exceptional circumstances are not provided by
the Law. In the event such circumstances appear, they
should be enforced general provisions of the civil
legislation.
29.
Checklist Moldova
WS0101.3730241.1
It is a legal question whether a Project Agreement may
be renewed, since such renewal clause may come
against the principle of competitive award of any PPP.
For our general information, please provide the given minimum and maximum duration (if any)
Answer: The Law does not provide for a minimum of the PPP Agreement. The maximum duration is of 50 years.
4.3 Termination of the Project Agreement
QUESTION
ANSWER
ARTICLE
COMMENTARY
4. Does the Law leaves open to the Project
Agreement negotiations the list of possible
ground for termination and the content of to the
termination provision ?
Article 31
of the Law
5. If the answer to the previous question is No does
the Law provide for a list of grounds of
termination which does not affect the balance
between the parties rights and obligations (one
sided provisions) or the stability of the
contractual relation under the Project
Agreement (e.g.: too large or non exhaustive
list)?
N/A
N/A
30.
Checklist Moldova
WS0101.3730241.1
6. Does the Law provide for (or at least does not
prevent) compensation of the Private Party for
losses incurred as a result for termination on the
grounds of public interest for losses incurred as
a result of public authority acts?
Art 23 (2) -
(3)
Compenstion to be paid by th defaulting Party.
Compensation of the Private Party for losses incurred
as a result for termination on the grounds of public
interest for losses incurred as a result of public
authority acts, other than legislative or another
normative act, should be enforced general provisions of
the civil legislation.
Generally it remains a matter of the Project Agreement
to define the amount of compensation and the cases
when it is payable. Contracting Authorities are
generally resistant to compensation clauses.
7. Does the Law provide for (or at least does not
prevent) compensation of the Private Party for
all cases of early termination (including in case
of serious breach or failure by the Private
Party), for fair value after depreciation of the
assets financed by the Private Party?
Compensation shall be awarded pursuant to the general
Civil Law provisions. Principle of undue enrichment.
4.4 Tariff setting, service standards
QUESTION
ANSWER
ARTICLE
COMMENTARY
8. Does the Law provide clear guidance on all
XX
Article 10
Article 10 (1) of the Law provides that Contracting
31.
Checklist Moldova
WS0101.3730241.1
aspects of interaction between the bodies that
have the power to award PPP and the bodies
that regulate tariffs and service standards?
(1) and 33
(2) of the
PPP Law
Authority should assist the Private Party in obtaining
the permissions, authorisations and any other
documents necessary for implementing the PPP.
Article 33 (2) of the Law provides that Private Party is
responsible for compliance with any
changes/modifications of technical rules on protection
of the environment and public health.
4.5 Financial responsibilities of the Private Party and Contracting Authority
QUESTION
ANSWER
ARTICLE
COMMENTARY
9. Does the Law provide that the Private Party can
collect tariffs or fees for the use of the facility or
its services?
Article 19
of the Law.
The right to collect tariffs or fees depends on the form
of the PPP and contractual provisions.
10. Does the Law provide for the possibility of
fixed and/or consumption-based payments to the
Private Party by the Granting Authority or other
public authorities (in the case of Power
Purchase Agreement , shadow tool or PFI for
instance) ?
Either option may be included in a Project Agreement.
32.
Checklist Moldova
WS0101.3730241.1
5. SECURITY AND SUPPORT ISSUES7
5.1 Security Interests
QUESTION
ANSWER
ARTICLE
COMMENTARY
1. Does the Law provide for (or does not
specifically prevent) a Private Party to create
security interests over the project assets, rights
and proceeds or other valuable guarantees
related to the project?
XX
Article 34
(3) of the
Law
The Law prohibits the Private Party to create security
interests or other valuable guarantees over the object of
the PPP, without the consent of Contracting Authority.
The breach of the said prohibition can lead to the
breach and termination of the agreement.
2. If the answer to the previous question is Yes,
does the Law clearly state which types of
security can be provided and include some of
the most common type of guarantees in project
financing (such as those listed in the request for
general information below)?
N/A
N/A
For our general information, please can you confirm whether a Private Party may pledge or assign by way of security:
the proceeds and receivables arising out of the PPP;
the assets for which it has rights of use under a project agreement;
7 For further information on support and financial securities, please refer to:PFI Guide, Consolidated Legislative Recommendations,Recommendations 13, 49, 57 and 60.
33.
Checklist Moldova
WS0101.3730241.1
its property;
shares of the Project Company;
the project agreement; or
obtain other valuable guarantees (please specify)?
5.2 Government support
QUESTION
ANSWER
ARTICLE
COMMENTARY
3. Does the Law provide for (or does not
specifically prevent) the public authority to
provide support to the Contracting Authority
and a guarantee for the proper implementation
of the PPP by the Contracting Authority?
XX
The Law does not prevent the public authority to
provide support to the Contracting Authority and a
Guarantee for the proper implementation of the PPP by
the Contracting Authority.
4. Does the Law provide for (or does not
specifically prevent) the Public Authority to
provide financial or economic support for the
implementation of PPP?
XX
The Law does not prevent the Public Authority to
provide financial or economic support for the
implementation of PPP.
5. If the answer to the previous question is Yes,
does the Law clearly state which public
N/A
34.
Checklist Moldova
WS0101.3730241.1
authorities may provide such support and
which types of support can be provided? (i.e.
tax and customs benefits; foreign exchange
protection (convertibility and transfer
guarantees; subsidies; equity or loan
participation)?
35.
Checklist Moldova
WS0101.3730241.1
5.3 Lenders’ rights
QUESTION
ANSWER
ARTICLE
COMMENTARY
6. Does the Law provide for the Parties to arrange
the financing with reasonable flexibility under
the Project Agreement without strict time
constraints or other constraints (except with
respect to security package and government
support)?
XX
The parties are free to arrange the financing
However, the tender or contract negotiation procedure
cannot be prolonged pending financial closing and the
period provided is extremelly short.
7. Does the Law provide, in the event of the
default of the Private Party for the lenders to
“step-in” or substitute the Private Party with a
qualified new Private Party without initiating a
new tender process?
XX
In the situations of default Contracting Authority is
entitled to terminate the PPP Agreement and claim
damages in court.
A Project Agreement may contain a clause giving effect
to this type of arrangements.
36.
Checklist Moldova
WS0101.3730241.1
6. SETTLEMENT OF DISPUTES AND APPLICABLE LAWS8
6.1 Settlement of disputes
QUESTION
ANSWER
ARTICLE
COMMENTARY
1. Does the Law permit the Contracting Authority
to enter into a Project Agreement that is subject
to international arbitration?
Article 36
(2) of the
Law.
Arbitration clauses are allowed in the PPP contract but
so far public authorities had resisted them mainly for
two reasons: (1) high perceived cost of international
arbitration; (2) the fact that an arbitral procedure would
not give immediate relief to public authorities, e.g. they
will not have immediate access to the local law
mechanism of application of interim measures in order
to avoid the disruption of a core public service.
2. Has the government of the country ratified the
Washington Convention on the Settlement of
Investment Disputes (ICSID) (1965)?
Moldova signed the ICSID in 1992. The Convention
entered into force in Moldova on 4 June 2011.
3. Has the government of the country ratified the
New York Convention on recognition and
enforcement of foreign arbitral awards (1958)?
Parliament
Decision
No.87-XIV
dated
10.07.1998
The Convention entered into force in Moldova on 30
July 1998.
8 For further information on the settlement of disputes, please refer to: PFI Guide, Consolidated legislative Recommendations, Recommendations 57, 69 and 71.
37.
Checklist Moldova
WS0101.3730241.1
38.
Checklist Moldova
WS0101.3730241.1
6.2 Applicable laws
QUESTION
ANSWER
ARTICLE
COMMENTARY
4. Does the Law permit (or does not prevent) the
Contracting Authority) to enter into side
agreements to the Project Agreement (such as a
direct agreement with the lenders to the project
or a support and guarantee agreement in
respect of the Project Agreement) that is
governed by foreign law.
The law does not prevent the Contracting Authority to
enter into side agreements to the Project Agreement
that is governed by foreign law
According to article 1581 of the Civil Code of Republic
of Moldova, foreign law that contradict to the public
order of Republic of Moldova will not be applicable. In
that case will be applicable the law of Republic of
Moldova.
5. Has the country ratified any international
convention for the protection of foreign
investments?
Moldova concluded bilateral agreements with Albania,
Austria, Bolgaria, Croatia, Czech Republic, Finanland,
France, Germany, Greece, Israel, Hungary, Kuwait,
Latvia, Lithuania, Netherlands, Poland, Romania,
Russia, Slovenia, Spain, Switzerland, Turkey, UK,
USA etc.
The country has adhered to the European Bank for
Reconstruction and Development, International
Monitory Fund and affiliated organisations.
39.
Checklist Moldova
WS0101.3730241.1
II- EFECTIVENESS ASSESSMENT: HOW THE LAW WORKS IN PRACTICE:
(Please comment based on the previous 2006 effectiveness general assessment)
7. POLICY FRAMEWORK
7.1 Existence of PPP Policy Framework
QUESTION
ANSWER
ARTICLE
COMMENTARY
1. Is there a general/national policy framework
(explicit or implicit) for PPPs for infrastructure
or public services?
XX
2. Is there any administrative guidance or printed
information edited by the government or the
PPP Unit concerning the legal framework for
PPP projects in the country?
XX
The Agency for Public Property circulates brochures on
PPPs
3. Is there a municipal/regional policy framework
(explicit or implicit) for PPPs in infrastructure
or public services?
XXX
40.
Checklist Moldova
WS0101.3730241.1
7.2 PPP Awareness and Sustainability
4. Is there a national and/or municipal /regional
long term programme for PPP promotion and
awareness?
XXX
As a matter of fact, the Government views PPPs as a
key instrument of development of the economy and is
keen launching more PPPs
5. Are there PPP training programmes on a
national and/or municipal/regional level for
public servants and other PPP concerned
people?
XXX
6. Are there PPP courses as part of university
curriculum or specialist departments and
faculties in universities teaching PPP?
XXX
41.
Checklist Moldova
WS0101.3730241.1
7.3 Obstacle to implementation of PPP Policy
7. Are you of the opinion that there are no
social/political obstacles to implementing PPP
in the country (e.g. grass roots opposition,
policy measures against private sector
participation in public infrastructure/services,
etc.)?
Officials do not fully understand the mechanics of a
PPP and how they can use it for the discharge of their
functions.
By trainings and pilot projects this should be dealt with.
8. Are you of the opinion that there are no legal
obstacles to implementing PPP in the country
(e.g. non-publication of a decree provided under
the Law and necessary for such law to become
effective, etc.)?
XX
The PPP legal framework should be more detailed. In
order to ensure the application in practice of the PPP
mechanisms, relevant Regulations and other new
legislation should be adopted on the basis of the PPP
Law.
42.
Checklist Moldova
WS0101.3730241.1
For our general information, please describe the existing impediment and obstacles if any with respect to the two previous questions
8. INSTITUTIONAL FRAMEWORK
8.1 Existence and role of PPP Central Units/Agency
QUESTION
ANSWER
ARTICLE
COMMENTARY
1. Is there a specialised
institution/agency/ministerial department
established to promote PPP and to serve as
Central PPP Unit?
XX
Article 16
of the Law
The Regulation on National Counsel of PPP was not
adopted by the Government yet.
2. Is such Central PPP Unit composed mainly of
specialists recruited from the business
community and not exclusively composed of
civil servants coming from different public
ministries?
N/A
The Regulation on National Counsel of PPP was not
adopted by the Government yet.
3. Is the role of such Central PPP Unit comparable
to a "task force" assisting in the development of
projects in general and not limited to promotion
of PPP?
N/A
The Regulation on National Counsel of PPP was not
adopted by the Government yet
4. Is the consent or recommendation of such
N/A
43.
Checklist Moldova
WS0101.3730241.1
Central PPP Unit necessary for the development
and granting of most PPP projects (except small
or local PPP)?
5. Is one of the roles of the Central PPP Unit to
assist in building capacity namely of the public
sector with respect to PPP?
N/A
The Regulation on National Counsel of PPP was not
adopted by the Government yet
For our general information, please name such establishment and specify its place in public hierarchy, format and key functions
(regulatory, operational, know how collecting, etc. or a combination thereof).
The National Council on PPP has general competence in the area of PPP. It does not have legal personality and is established by the Government,
operating with the Government. The National Council on PPP evaluates state policies on PPP, defines the priorities and strategies for
implementing PPP in Moldova.
The Government names the members of the Council. A relevant Regulation was not adopted yet by the Government.
8.2 Other institutions concerned by PPP
6. Is there any PPP unit/agency or department of
the Central PPP unit either at the municipal or
regional level?
XXX
7. Is there any specific PPP unit department in any
ministry (other than the central PPP unit) or at
sectoral level?
XXX
44.
Checklist Moldova
WS0101.3730241.1
8. Is there either a specific "one stop shop" for PPP
authorisations and formalities or a "one stop
shop" which services are available to the
sponsors of PPP project as well as other
investors?
XXX
9. Is the division of power between different public
authorities involved in the PPP granting process
simple and coordinated?
9. PPP LAW ENFORCEMENT
9.1 Effectiveness of PPP enforcement and compliance with the Law
QUESTION
ANSWER
ARTICLE
COMMENTARY
1. Have any PPP projects in any form ever been
awarded in the country on the basis of the Law
discussed above ? (with or without specific
reference to the Law)
XXX
Several are in a tender process.
2. Have such PPP projects, if any, been awarded
generally following a transparent competitive
selection procedure (and only through direct
N/A
45.
Checklist Moldova
WS0101.3730241.1
negotiation under exceptional legal
circumstances as may be provided by the Law)?
3. Have any PPP projects or similar long term
agreements (falling under the definition of PPP
under this questionnaire) been awarded on any
legal basis different from the Law since the Law
has been in force?
Usually on the municipal level: for
instance a European company repairs and
maintains bus stations in exchange for
right to post publicity.
These were awarded before the PPP law.
For our general information, please give example of legal instruments, or reasons used, to bypass the Law and establish a PPP.
9.2 Statistics on PPP implementation under the Law
4. Have most of the awarded PPP projects been
successfully implemented and put into operation
in compliance with the Law?
N/A
5. Has a PPP project ever been awarded and
implemented in the country at the local /regional
/municipal level in compliance with the Law?
N/A
6. Have PPP project ever been awarded in the
country in the non merchant sector (such as
Hospital, School, prisons) and not exclusively
in the merchant sector (energy, water,
N/A
46.
Checklist Moldova
WS0101.3730241.1
transport)?
For our general information:
Approximately how many PPP projects are presently in operation (figure or order of magnitude)in the country and in what sectors have PPP
projects been awarded (energy, water, education, health for example)? none
Please give some examples of the most significant project awarded:
under which legal form have such PPP project s been awarded (Concession, BOT, PFI, other): N/A
have such PPP project been granted by (i) central, (ii) sub-sovereign/regional (if applicable) or (iii) municipal government as Contracting
Authority; N/A
when did PPP begin to be awarded in the country: (i) in the last 10 years or before; (ii) in the last 5 years; or (iii) within the past few years
only; and
please give examples of any PPP projects awarded but not implemented (or not implemented under a PPP form) N/A
.are there any PPP/Project Agreements in discussion? The Ministry of Health is launching 2 PPPs with the help of IFC to open new
diagnostic centres in 2 largest public hospitals; the Ministry of Transport is launching PPP regarding the parking area of the airport.
9.3 Challenge of PPP
7. Are you of the opinion that there is a reasonable
chance for an unsuccessful bidder to
successfully challenge in the country a PPP
awarded under conditions contrary to the Law?
47.
Checklist Moldova
WS0101.3730241.1
8. If the answer to the previous question is Yes, are
you of the opinion that there is a reasonable
chance for the plaintiff to get some
compensation or for such action to result in the
cancellation of the award?
9. Have PPP project been implemented by the
parties most generally without serious
claims/arbitration by either Party concerning the
performance of the Project Agreements under
the Law?
N/A
10. If any Project Agreement has been terminated
prior to the end of the contractual period by the
Contracting Authority, has fair compensation
been paid to the Private Party in compliance
with the Law?
N/A
For our general information, can you provide any examples of a successful legal challenge in the courts or otherwise of a PPP award in
the country based on the PPP Law? Please describe the matter and, if known, the outcome of such matter.
